Increased Costs and Reduced Return. (a) If the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(i), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount. (b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any agreement to make Loans or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capital. (c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 shall be final and conclusive absent manifest error. (d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or the Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any the Agent or any Person controlling any such Lender or any such the Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any the Agent or any Person controlling any such Lender or any such the Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any the Agent, or any Person controlling any such Lender or any such the Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such the Agent, or change the basis of taxation of payments to any Lender or any the Agent or any Person controlling any such Lender or any such the Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any the Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any the Agent or any Person controlling any such Lender or any such the Agent or (iii) impose on any Lender or any the Agent or any Person controlling any such Lender or any such the Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any the Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any the Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such the Agent such additional amounts as will compensate such Lender or such the Agent for such increased costs or reductions in amount.
(b) If any Lender or the Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any the Agent or any Person controlling such Lender or such the Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any the Agent or any Person controlling such Lender or such the Agent, and any Lender or the Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any the Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any the Agent's or any such other controlling Person's capital to a level below that which such Lender or such the Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such the Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such the Agent from time to time such additional amounts as will compensate such Lender or such the Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such the Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any the Agent until payment in full to such Lender or such the Agent at the Reference Rate. A certificate of such Lender or such the Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such the Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such the Agent's reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loanthe Loans, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loanthe Loans, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender or any Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and any Lender or any Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's ’s or any Agent's ’s or any such other controlling Person's ’s Letter of Credit Obligations or other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Agent's ’s or any such other controlling Person's ’s capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any the Loans made or maintained or any agreement to make Loans the Loans, or such Lender's ’s or such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative any Agent), the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such the Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such the Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days ten (10) Business Days after the date of demand by any Lender or any the Administrative Agent until payment in full to such Lender or such Administrative Agent at the Reference RateRate plus 8%. A certificate of such Lender or such Administrative Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such the Administrative Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such the Administrative Agent's ’s reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to Failure or delay on the contrary contained in this Section 4.05, unless the part of any Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower demand compensation pursuant to this Section 4.05 shall not constitute a waiver of such Lender’s or Agent’s right to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to demand such Lender or such Agent giving notice to the Borrower compensation; provided, that the Borrower is obligated shall not be required to pay the respective amounts compensate any Lender or Agent pursuant to this Section 4.054.05 for any increased costs incurred more than ninety (90) days prior to the date that such Lender or Agent notifies the Borrower of the law, rule, regulation, order, guideline, request or other legal requirement of any central bank or other Governmental Authority (whether or not having the force of law) giving rise to such increased costs and of such Lender or Agent’s intention to claim compensation therefor; provided further that, if such law, rule, regulation, order, guideline, request or other legal requirement giving rise to such increased costs is retroactive, then the 90 day period referred to above shall be extended to include the period of retroactive effect.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or Lender, any Agent or any Person controlling any such Lender or Lender, any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law) (each, a “Change in Law”), shall (i) subject any Lender or Lender, any Agent, Agent or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan the Revolving Loans made by such Lender or such Agent, Agent or change the basis of taxation of payments to any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan the Revolving Loans, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loanthe Revolving Loans, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loanthe Revolving Loans, or agreeing to make any Loan, the Revolving Loans or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or any such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender Lender, or such Agent for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or shall have determined that any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (Change in each case, occurring after the Effective Date and irrespective of whether having the force of law), Law either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or Lender, any Agent or any Person controlling such Lender or such Agent, Agent and any Lender or any Agent determines that the amount of such capital is increased as a direct or indirect consequence of any the Revolving Loans made or maintained, any Lender's or ’s, any Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Agent's or ’s any such other controlling Person's ’s capital to a level below that which such Lender or Lender, such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any the Revolving Loans made or maintained maintained, or any agreement to make Loans the Revolving Loans, or such Lender's or ’s, such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s, or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative any Agent), the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Agent's ’s reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Sources: Financing Agreement (Progressive Gaming International Corp)
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation ofafter the Effective Date, or any change after the Effective Date in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change after the Effective Date in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or Lender, any Agent or any Person controlling any such Lender or Lender, any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law) (each, a “Change in Law”), shall (i) subject any Lender or Lender, any Agent, Agent or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, Agent or change the basis of taxation of payments to any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or any such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender Lender, or such Agent for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or shall have determined that any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (Change in each case, occurring after the Effective Date and irrespective of whether having the force of law), Law either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or Lender, any Agent or any Person controlling such Lender or such Agent, Agent and any Lender or any Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or ’s, any Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Agent's or ’s any such other controlling Person's ’s capital to a level below that which such Lender or Lender, such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or ’s, such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s, or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative any Agent), the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Agent's ’s reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or the Administrative Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent with any directive of, or guideline from, any central bank or other Governmental Authority (in each case, whether or not having the introduction offorce of law), or change inin each of the foregoing instances, any accounting principles applicable to after the date hereof, shall (i) subject any Lender or any the Administrative Agent or any Person controlling any such Lender or the Administrative Agent to any such Agent tax (in each case, occurring after except for general franchise taxes and taxes on the Effective Date and irrespective overall net income of whether having the force of law), shall (i) subject any Lender or the Administrative Agent or any Person controlling any such Lender or the Administrative Agent by the jurisdiction in which such Lender or the Administrative Agent, or any Person controlling any such Lender is organized, has its principal place of business, or any such Agent to any taxlending office), duty or other charge with respect to this Agreement or any Loan made by such Lender or such Administrative Agent, or change the basis of taxation of payments to any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent of any amounts payable hereunder (except for general franchise taxes and taxes on the overall net income of any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) the jurisdiction in respect of any Taxes to the extent that which such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAdministrative Agent, or any Person controlling any such Lender is organized, has its principal place of business, or any lending office), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent or (iii) impose on any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any the Administrative Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any the Administrative Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay within ten (10) Business Days after demand, to such Lender or such the Administrative Agent such additional amounts as will compensate such Lender or such the Administrative Agent for such increased costs or reductions in amount, but without duplication of Taxes and Other Taxes governed by Section 2.09 hereof.
(b) If any Lender or the Administrative Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any the Administrative Agent or any Person controlling such Lender or such the Administrative Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles Guideline (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), in each of the foregoing instances, after the date hereof, either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any the Administrative Agent or any Person controlling such Lender or such Agent, the Administrative Agent and any Lender or the Administrative Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, maintained or any Lender's or any the Administrative Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Administrative Agent's or any such other controlling Person's capital to a level below that which such Lender or such the Administrative Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or such the Administrative Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such the Administrative Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery ten (10) Business Days of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such the Administrative Agent from time to time such additional amounts as will compensate such Lender or such the Administrative Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such 's, Administrative Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 2.08 shall bear interest from the date that is 10 days ten (10) Business Days after the date of demand by any Lender or any the Administrative Agent until payment in full to such Lender or such the Administrative Agent at the Reference Base Rate, unless the same is being contested by Borrowers in good faith. A certificate of such Lender or such the Administrative Agent claiming compensation under this Section 4.052.08, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such the Administrative Agent to the BorrowerBorrowers, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such 's, Administrative Agent's reasons for invoking the provisions of this Section 4.05 2.08, and shall be final and conclusive presumptive absent manifest error.
(d) Notwithstanding anything herein to the contrary contained contrary, the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all rules, regulations, guidelines and directives thereunder or issued in connection therewith shall be deemed, for all purposes of this Section 4.05Agreement, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or adopted after the date which occurs 180 days prior to such Lender of this Agreement, regardless of the date actually enacted, adopted or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05issued.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or Administrative Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Administrative Agent or any Person controlling any such Lender or any such Administrative Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Administrative Agent or any Person controlling any such Lender or any such Administrative Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law) (each, a “Change in Law”), shall (i) subject any Lender or any AgentLender, Administrative Agent or any Person controlling any such Lender or any such Administrative Agent to any tax, duty or other charge with respect to this Agreement or any Loan the Loans made by such Lender or such Agent, Administrative Agent or change the basis of taxation of payments to any Lender or any Lender, Administrative Agent or any Person controlling any such Lender or any such Administrative Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Lender, Administrative Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAdministrative Agent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan the Loans, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any Lender, Administrative Agent or any Person controlling any such Lender or any such Administrative Agent or (iii) impose on any Lender or any Lender, Administrative Agent or any Person controlling any such Lender or any such Administrative Agent any other condition regarding this Agreement or any Loanthe Loans, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Administrative Agent of making any Loanthe Loans, or agreeing to make any Loan, the Loans or to reduce any amount received or receivable by any Lender or any Administrative Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Administrative Agent such additional amounts as will compensate such Lender or such Administrative Agent for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or Administrative Agent shall have determined that any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (Change in each case, occurring after the Effective Date and irrespective of whether having the force of law), Law either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Lender, Administrative Agent or any Person controlling such Lender or such Agent, Administrative Agent and any Lender or Administrative Agent determines that the amount of such capital is increased as a direct or indirect consequence of any the Loans made or maintained, any Lender's or any ’s, Administrative Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Administrative Agent's ’s or any such other controlling Person's ’s capital to a level below that which such Lender or such Lender, Administrative Agent or such controlling Person could have achieved but for such circumstances as a consequence of any the Loans made or maintained maintained, or any agreement to make Loans the Loans, or such Lender's or such ’s, Administrative Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such Administrative Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Administrative Agent from time to time such additional amounts as will compensate such Lender or such Administrative Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Administrative Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 3.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any Administrative Agent until payment in full to such Lender or such Administrative Agent at the Reference Rate. A certificate of such Lender or such Administrative Agent claiming compensation under this Section 4.053.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrowerevent, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Administrative Agent's ’s reasons for invoking the provisions of this Section 4.05 3.05, shall be submitted by such Lender or Administrative Agent to the Borrower and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Sources: Credit Agreement (Progressive Gaming International Corp)
Increased Costs and Reduced Return. (a) If any Lender shall have determined that, after the Effective Date, the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, in the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, of or guideline from, from any central bank or other Governmental Authority or the introduction of, of or change in, in any accounting principles applicable to any the Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iLender), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, by any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Lender, the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender shall have determined that, after the Effective Date, any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such any Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agentany Lender, and any Lender determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, hereunder or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, consideration such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)any Lender, the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 3.05 shall bear interest from the date that is 10 ten (10) days after the date of written demand by any a Lender or any Agent until payment in full to such Lender or such Agent at the Reference Base Rate. A certificate of such any Lender or such Agent claiming compensation under this Section 4.05, 3.05 specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 3.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender, or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender Lender, or any Agent or any Person controlling any such Lender or any such Agent with any request or directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or Lender, any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, Agent or change the basis of taxation of payments to any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender Lender, or any Agent of making any LoanLoan by an amount which such Lender or Agent deems material, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or any such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender or any Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender Lender, or any Agent or any Person controlling any such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or Lender, any Agent or any Person controlling any such Lender or such Agent, and any Lender or any Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or ’s, any Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or ’s, any Agent's ’s or any such other controlling Person's ’s capital to a level below that which such Lender or Lender, such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or ’s, such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's or ’s, such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such any Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or ’s, such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s, or such Agent's ’s reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error; provided that the Borrower shall not be required to compensate a Lender, an Agent, or any Person controlling such Lender or Agent or pursuant to this Section 4.05 for any increased costs incurred or reductions suffered unless such Lender, Agent or controlling Person, as applicable, gives notice to the Borrower of the change in law or other action described in Section 4.05(a) or 4.05(b) giving rise to such increased costs or reductions and such Lender’s, Agent’s or controlling Person’s intention to claim compensation therefore, within 180 days after such Lender, Agent or controlling Person, as applicable, receives notice that it will suffer an increased cost or reduced return.
(d) Notwithstanding anything If any Lender, Agent, or any Person controlling such Lender or Agent requests compensation or indemnification pursuant to the contrary contained in this Section 4.05, unless then, upon the written request of the Borrower, such Lender, Agent, or Person controlling such Lender or Agent (as applicable) shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder (subject to the provisions of Section 12.08) to another of its offices, branches or affiliates, if such designation or assignment (i) would eliminate or materially reduce amounts payable in the future and (ii) would not subject such Lender, Agent, or Person controlling such Lender or Agent (as applicable) to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender, Agent, or Person controlling such Lender or Agent gives (as applicable).
(e) If any Lender (an “Increased Cost Lender”) shall give notice to the Borrower that such Lender is an affected Lender or that such Lender is entitled to receive payments under either Section 2.08 or this Section 4.05, the Borrower is obligated may, so long as no Event of Default shall have occurred and be continuing, permanently replace such Increased-Cost Lender with one or more substitute Lenders (each, a “Replacement Lender”), and such Increased-Cost Lender shall have no right to pay any amount under this Section 4.05 within 180 days refuse to be replaced hereunder. Such notice to replace the Increased-Cost Lender shall specify an effective date for such replacement, which date shall not be later than 10 Business Days after the later of (x) the date such notice is given. Prior to the effective date of such replacement, the Increased-Cost Lender or such Agent incurs and each Replacement Lender shall execute and deliver an Assignment and Acceptance, subject only to the respective increased costs or reduction in the rate of return or (y) the date such Increased-Cost Lender or such Agent has actual knowledge of being repaid its incurrence share of the respective increased costs outstanding Obligations. If the Increased-Cost Lender shall refuse or reduction in the rate of return, then fail to execute and deliver any such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 Assignment and Acceptance prior to the extent effective date of such replacement, the respective increased costs or reduction Increased-Cost Lender shall be deemed to have executed and delivered such Assignment and Acceptance. The replacement of any Increased-Cost Lender shall be made in accordance with the rate terms of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.0512.07.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law) (each a “Change in Law”), shall (i) subject any such Lender or any Agent, such Agent or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any such Lender or any such Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any such Lender or any such Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any such Lender or any such Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any such Lender or any such Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, Loan and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any such Lender or any such Agent of making any Loan, Loan or agreeing to make any Loan, or to reduce any amount received or receivable by any such Lender or any such Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or shall have determined that any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (Change in each case, occurring after the Effective Date and irrespective of whether having the force of law), Law either (i) affects or would affect the amount of capital required or expected to be maintained by any such Lender or any such Agent or any Person controlling such Lender or such Agent, Agent and such Lender or such Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's maintained or any guaranty or participation with respect thereto, such Lender’s or such Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any such Lender's ’s or any such Agent's or any ’s such other controlling Person's ’s capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any guaranty or participation with respect thereto or any agreement to make Loans Loans, or such Lender's ’s or such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender Lender, or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 3.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.053.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Agent's ’s reasons for invoking the provisions of this Section 4.05 3.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to If a Lender (each, an “Affected Lender”) shall have requested compensation from the contrary contained in Borrowers under clause (a) or (b) of this Section 4.053.05 to recover increased costs or other additional costs incurred by such Affected Lender which are not being incurred generally by the other Lenders, unless then, in any such case, so long as no Default or Event of Default exists, the Lender or any Agent gives Administrative Borrower may, at its option, upon written notice to the Borrower that Agents, arrange for a substitute Lender to assume the Borrower applicable Commitment and/or Loans of such Affected Lender in accordance with the provisions of Section 11.07, such substitute Lender to be acceptable to the Collateral Agent (and the Administrative Agent, if such Affected Lender is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such a Revolving Lender or a Term Loan A Lender) in its or their sole discretion. In connection with the arrangement of such Agent incurs a substitute Lender, the respective increased costs or reduction Affected Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence favor of the respective increased costs substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations without any premium or reduction in the rate penalty of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05any kind whatsoever.
Appears in 1 contract
Sources: Financing Agreement (Gordon Biersch Brewery Restaurant Group, Inc.)
Increased Costs and Reduced Return. (a) If any Lender shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, in the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, of or guideline from, from any central bank or other Governmental Authority or the introduction of, of or change in, in any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iLender), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended byby any Lender, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Lender, the Borrower Borrowers shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such any Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agentany Lender, and any Lender determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, or any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)any Lender, the Borrower Borrowers shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 4.04 shall bear interest from the date that is 10 ten days after the date of demand by any a Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such any Lender or such Agent claiming compensation under this Section 4.05, 4.04 specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, thereof and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 4.04, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything If any of the events requiring payments of additional amounts by the Borrowers under this Section 4.04 occurs and the applicable Lender shall have made a demand for such payment hereunder, the applicable Lender shall take such steps as may be reasonable (consistent with its internal policy and legal and regulatory restrictions) to (i) change the contrary contained jurisdiction of its funding office if such change would avoid the Borrowers being required to pay any additional amount or (ii) otherwise mitigate the effects of any law or regulation or any change therein or interpretation thereof as set forth in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.054.04 above.
Appears in 1 contract
Sources: Financing Agreement (Sunterra Corp)
Increased Costs and Reduced Return. (a) If If, on or after the date hereof, the adoption or implementation of, or of any change in, any applicable law, rule, treaty rule or regulation, or any policy, guideline or directive ofchange therein, or any change in, in the interpretation or administration thereof by, by any courtgovernmental authority, central bank or other administrative comparable agency charged with the interpretation or Governmental Authorityadministration thereof, or compliance by any Lender (or any Agent its Lending Office) or any Person controlling any such Lender or any such Agent the L/C Issuer with any request or directive of, (whether or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether not having the force of law)) of any such authority, shall central bank or comparable agency;
(i) shall subject any Lender (or any Agent, its Lending Office) or any Person controlling any such Lender or any such Agent the L/C Issuer to any tax, duty or other charge (except overall net income or franchise taxes of general application or the rates thereof imposed by the jurisdiction in which such Lender’s or L/C Issuer’s principal executive office or Lending Office is located) with respect to this Agreement or any Loan made by such Lender or such Agentits LIBOR Rate Loans, its notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations owed to it or its obligation to make LIBOR Rate Loans, issue a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender (or its Lending Office) or the L/C Issuer of the principal of or interest on its LIBOR Rate Loans, Letter(s) of Credit, or participations therein or any Agent other amounts due under this Agreement or any Person controlling other Loan Document in respect of its LIBOR Rate Loans, Letter(s) of Credit, any such Lender participation therein, any Reimbursement Obligations owed to it, or any such Agent its obligation to make LIBOR Rate Loans, or issue a Letter of any amounts payable hereunder Credit, or acquire participations therein (except for taxes on the overall net income or franchise taxes of any Lender general application or any Agent the rates thereof imposed by the jurisdiction in which such Lender’s or any Person controlling any such Lender the L/C Issuer’s principal executive office or any such Agent and taxes governed by Section 2.08Lending Office is located), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(i), ; or
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against (including, without limitation, any Loan or such requirement imposed by the Board, but excluding with respect to any LIBOR Rate Loans any such requirement included in an applicable Reserve Percentage) against assets of or held byof, or deposits with or for the account of, or credit extended by, any Lender (or any Agent its Lending Office) or any Person controlling any such Lender the L/C Issuer or any such Agent or (iii) shall impose on any Lender (or any Agent its Lending Office) or any Person controlling any such Lender the L/C Issuer or any such Agent on the interbank market any other condition regarding this Agreement affecting its LIBOR Rate Loans, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation owed to it, or its obligation to make LIBOR Rate Loans, or to issue a Letter of Credit, or to participate therein; and the result of any event referred to in clauses (i), (ii) or (iii) above shall be of the foregoing is to increase the cost to any such Lender (or any Agent its Lending Office) or the L/C Issuer of making or maintaining any LIBOR Rate Loan, issuing or agreeing to make any Loanmaintaining a Letter of Credit, or participating therein, or to reduce the amount of any amount sum received or receivable by such Lender (or its Lending Office) or the L/C Issuer under this Agreement or under any other Loan Document with respect thereto, by an amount deemed by such Lender or any Agent hereunderL/C Issuer to be material, then, within 10 15 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such Lender or such Agent L/C Issuer (with a copy of which certificate to the Administrative Agent), the Borrower shall be sent obligated to pay to such Lender or L/C Issuer such Additional Amount or amounts as will compensate such Lender or L/C Issuer for such increased cost or reduction (provided, that the Borrower shall not be obligated to pay amounts of the type described in Section 4.05(a)(i) above which are duplicative of, or are specifically excluded from, amounts payable in accordance with Section 2.08).
(b) If, after the date hereof, any Lender, the L/C Issuer, or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation (including any Capital Guideline) regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) or the L/C Issuer or any corporation controlling such Lender or L/C Issuer with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency (each a “Change in Law”), has had the effect of reducing the rate of return on such Lender’s or L/C Issuer ‘s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or L/C Issuer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or L/C Issuer ‘s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender or Agent L/C Issuer to be material, then from time to time, within 15 days after demand by such Lender or L/C Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or L/C Issuer, as applicable, such Agent such additional Additional Amount or amounts as will compensate such Lender or such Agent L/C Issuer for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any agreement to make Loans or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capitalreduction.
(c) All amounts payable under Notwithstanding anything herein to the contrary, each of (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) the Basel III Accord issued by the Basel Committee on Banking Supervision and all requests, guidelines or directives in connection therewith, shall be deemed to be a change in law and a “Change in Law” for purposes of this Agreement (including without limitation for purposes of this Section 4.05 shall bear interest from 4.05), regardless of the date that is 10 days after the date of demand by any Lender enacted, adopted or any Agent until payment in full to such Lender or such Agent at the Reference Rate. issued.
(d) A certificate of such a Lender or such Agent L/C Issuer claiming compensation under this Section 4.05, specifying the event herein above described 4.05(c) and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereofAdditional Amount or amounts to be paid to it hereunder shall be conclusive if reasonably determined. In determining such additional amountsamount, each such Lender or Agent will act reasonably and in good faith and will L/C Issuer may use any reasonable averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 shall be final and conclusive absent manifest errormethods.
(de) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or Borrower shall not be required to compensate any Lender, any Agent gives notice to or the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower L/C Issuer pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are for any amounts incurred or suffered on or after the date which occurs more than 180 days prior to the date that such Lender Lender, such Agent or such Agent giving notice to L/C Issuer notifies the Borrower of such Lender’s, such Agent’s or the L/C Issuer’s intention to claim compensation therefor; provided, that if the Borrower is obligated circumstances giving rise to pay such claim have a retroactive effect, then such 180 day period shall be extended to include the respective amounts pursuant to this Section 4.05period of such retroactive effect.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender, any Agent or the Issuing Bank shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or Lender, any Agent or the Issuing Bank or any Person controlling any such Lender or any Lender, such Agent or the Issuing Bank with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender Lender, such Agent or any Agent the Issuing Bank or any Person controlling any such Lender or any Lender, such Agent or the Issuing Bank (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law) (each, a "Change in Law"), shall (i) subject any Lender such Lender, such Agent or any Agentthe Issuing Bank, or any Person controlling any such Lender or any Lender, such Agent or the Issuing Bank to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such AgentAgent or any Letter of Credit issued by the Issuing Bank, or change the basis of taxation of payments to any Lender such Lender, such Agent or any Agent the Issuing Bank or any Person controlling any such Lender or any Lender, such Agent or the Issuing Bank of any amounts payable hereunder (except for taxes on the overall net income of any Lender such Lender, such Agent or any Agent the Issuing Bank or any Person controlling any such Lender or any Lender, such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iIssuing Bank), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, any Letter of Credit or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender such Lender, such Agent or any Agent the Issuing Bank or any Person controlling any such Lender or any Lender, such Agent or the Issuing Bank or (iii) impose on any Lender such Lender, such Agent or any Agent the Issuing Bank or any Person controlling any such Lender or any Lender, such Agent or the Issuing Bank any other condition regarding this Agreement or any LoanLoan or Letter of Credit, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender such Lender, such Agent or any Agent the Issuing Bank of making or maintaining any Loan (or of maintaining its obligation to make any such Loan), issuing, guaranteeing, maintaining or participating in any Letter of Credit, or agreeing to make any LoanLoan or issue, guaranty, maintain or participate in any Letter of Credit, or to reduce any amount received or receivable by any Lender such Lender, such Agent or any Agent the Issuing Bank hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or Lender, such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Issuing Bank, the Borrower Borrowers shall pay to such Lender or Lender, such Agent or the Issuing Bank such additional amounts as will compensate such Lender or Lender, such Agent or the Issuing Bank for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation ofLender, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or the Issuing Bank shall have determined that any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect Change in Law related to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender such Lender, such Agent or any Agent the Issuing Bank or any Person controlling such Lender Lender, such Agent or such Agentthe Issuing Bank, and such Lender, such Agent or the Issuing Bank determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, Letters of Credit issued or any guaranty or participation with respect thereto, such Lender's, such Agent's or any Agentthe Issuing Bank's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any such Lender's or any 's, such Agent's or the Issuing Bank's any such other controlling Person's capital to a level below that which such Lender or Lender, such Agent or the Issuing Bank or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, Letters of Credit issued, or any participation with respect thereto or any agreement to make Loans Loans, to issue or participate in Letters of Credit or such Lender's, such Agent's or such Agentthe Issuing Bank's or such other controlling Person's other obligations hereunder (in each case, case taking into considerationconsideration such Lender's, such LenderAgent's or such Agentthe Issuing Bank's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or Lender, such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Issuing Bank, the Borrower Borrowers shall pay to such Lender or Lender, such Agent or the Issuing Bank from time to time such additional amounts as will compensate such Lender or Lender, such Agent or the Issuing Bank for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's, such Agent's or such Agentthe Issuing Bank's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or Lender, any Agent or the Issuing Bank until payment in full to such Lender or Lender, such Agent or the Issuing Bank at the Reference Alternate Base Rate. A certificate of such Lender or Lender, such Agent or the Issuing Bank claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or Lender, such Agent or the Issuing Bank to the Administrative Borrower, setting forth the additional amount due (the calculation thereof to be in reasonable detail) and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's, such Agent's or such Agentthe Issuing Bank's reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to If any Lender, any Agent or the contrary contained in Issuing Bank requests compensation under this Section 4.05, unless or if the Lender Borrowers are or any Agent gives notice to the Borrower that the Borrower is obligated would be required to pay any additional amount under this Section 4.05 within 180 days after to any Lender, any Agent or the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts Issuing Bank pursuant to this Section 4.05., then such Lender, such Agent or the Issuing Bank shall use commercially reasonable efforts to designate a different lending office for funding or booking its Loans and/or Letters of Credit hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such Agent or the Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to this
Appears in 1 contract
Sources: Financing Agreement (Milacron Inc)
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or Lender, any Agent or any Person controlling any such Lender or Lender, any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or Lender, any Agent, Agent or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, Agent or change the basis of taxation of payments to any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or Lender, any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery three (3) Business Days of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by any such Lender or any such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender Lender, or such Agent for such increased costs or reductions in amount.
(b) If any Lender or any Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or Lender, any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or Lender, any Agent or any Person controlling such Lender or such Agent, Agent and any Lender or any Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or ’s, any Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or ’s, any Agent's ’s or any such other controlling Person's ’s capital to a level below that which such Lender or Lender, such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's or ’s, such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s, or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery three (3) Business Days of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative any Agent), the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Agent's ’s reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Sources: Financing Agreement (Magnetek Inc)
Increased Costs and Reduced Return. (a) If If, on or after the date hereof, the adoption or implementation of, or of any change in, any applicable law, rule, treaty rule or regulation, or any policy, guideline or directive ofchange therein, or any change in, in the interpretation or administration thereof by, by any courtgovernmental authority, central bank or other administrative comparable agency charged with the interpretation or Governmental Authorityadministration thereof, or compliance by any Lender (or any Agent its Lending Office) or any Person controlling any such Lender or any such Agent the L/C Issuer with any request or directive of, (whether or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether not having the force of law)) of any such authority, shall central bank or comparable agency;
(i) shall subject any Lender (or any Agent, its Lending Office) or any Person controlling any such Lender or any such Agent the L/C Issuer to any tax, duty or other charge (except overall net income or franchise taxes of general application or the rates thereof imposed by the jurisdiction in which such Lender’s or L/C Issuer’s principal executive office or Lending Office is located) with respect to this Agreement or any Loan made by such Lender or such Agentits LIBOR Rate Loans, its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations owed to it or its obligation to make LIBOR Rate Loans, issue a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender (or its Lending Office) or the L/C Issuer of the principal of or interest on its LIBOR Rate Loans, Letter(s) of Credit, or participations therein or any Agent other amounts due under this Agreement or any Person controlling other Loan Document in respect of its LIBOR Rate Loans, Letter(s) of Credit, any such Lender participation therein, any Reimbursement Obligations owed to it, or any such Agent its obligation to make LIBOR Rate Loans, or issue a Letter of any amounts payable hereunder Credit, or acquire participations therein (except for taxes on the overall net income or franchise taxes of any Lender general application or any Agent the rates thereof imposed by the jurisdiction in which such Lender’s or any Person controlling any such Lender the L/C Issuer’s principal executive office or any such Agent and taxes governed by Section 2.08Lending Office is located), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(i), ; or
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against (including, without limitation, any Loan or such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any LIBOR Rate Loans any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of or held byof, or deposits with or for the account of, or credit extended by, any Lender (or any Agent its Lending Office) or any Person controlling any such Lender the L/C Issuer or any such Agent or (iii) shall impose on any Lender (or any Agent its Lending Office) or any Person controlling any such Lender the L/C Issuer or any such Agent on the interbank market any other condition regarding this Agreement affecting its LIBOR Rate Loans, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation owed to it, or its obligation to make LIBOR Rate Loans, or to issue a Letter of Credit, or to participate therein; and the result of any event referred to in clauses (i), (ii) or (iii) above shall be of the foregoing is to increase the cost to any such Lender (or any Agent its Lending Office) or the L/C Issuer of making or maintaining any LIBOR Rate Loan, issuing or agreeing to make any Loanmaintaining a Letter of Credit, or participating therein, or to reduce the amount of any amount sum received or receivable by such Lender (or its Lending Office) or the L/C Issuer under this Agreement or under any other Loan Document with respect thereto, by an amount deemed by such Lender or any Agent hereunderL/C Issuer to be material, then, within 10 15 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such Lender or such Agent L/C Issuer (with a copy of which certificate to the Administrative Agent), the Borrower shall be sent obligated to pay to such Lender or L/C Issuer such Additional Amount or amounts as will compensate such Lender or L/C Issuer for such increased cost or reduction (provided, that the Borrower shall not be obligated to pay amounts of the type described in Section 4.05(a)(i) above which are duplicative of, or are specifically excluded from, amounts payable in accordance with Section 2.08).
(b) If, after the date hereof, any Lender, the L/C Issuer, or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) or the L/C Issuer or any corporation controlling such Lender or L/C Issuer with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency (each a “Change in Law”), has had the effect of reducing the rate of return on such Lender’s or L/C Issuer ’s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or L/C Issuer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or L/C Issuer ’s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender or Agent L/C Issuer to be material, then from time to time, within 15 days after demand by such Lender or L/C Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or L/C Issuer, as applicable, such Agent such additional Additional Amount or amounts as will compensate such Lender or such Agent L/C Issuer for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any agreement to make Loans or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capitalreduction.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such a Lender or such Agent L/C Issuer claiming compensation under this Section 4.05, specifying the event herein above described 4.05(c) and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereofAdditional Amount or amounts to be paid to it hereunder shall be conclusive if reasonably determined. In determining such additional amountsamount, each such Lender or Agent will act reasonably and in good faith and will L/C Issuer may use any reasonable averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 shall be final and conclusive absent manifest errormethods.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or Borrower shall not be required to compensate any Lender, any Agent gives notice to or the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower L/C Issuer pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are for any amounts incurred or suffered on or after the date which occurs more than 180 days prior to the date that such Lender Lender, such Agent or such Agent giving notice to L/C Issuer notifies the Borrower that of such Lender’s, such Agent’s or the Borrower is obligated L/C Issuer’s intention to pay claim compensation therefor; provided that, if the respective amounts pursuant circumstances giving rise to this Section 4.05such claim have a retroactive effect, then such 180 day period shall be extended to include the period of such retroactive effect.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, in the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, of or guideline from, from any central bank or other Governmental Authority or the introduction of, of or change in, in any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iLender), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Revolving Loan or against assets of or held by, or deposits with or for the account of, or credit extended byby any Lender, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Revolving Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Revolving Loan, or agreeing to make any Loan, Revolving Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Lender, the Borrower Borrowers shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such any Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agentany Lender, and any Lender determines that the amount of such capital is increased as a direct or indirect consequence of any Revolving Loans made or maintained, or any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Revolving Loans made or maintained maintained, or any agreement to make Loans Revolving Loans, or such Lender's or such Agent's Lenders or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)any Lender, the Borrower Borrowers shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 4.04 shall bear interest from the date that is 10 ten days after the date of demand by any a Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such any Lender or such Agent claiming compensation under this Section 4.05, 4.04 specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, thereof and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 4.04, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything If any of the events requiring payments of additional amounts by the Borrowers under this Section 4.04 occurs and the applicable Lender shall have made a demand for such payment hereunder, the applicable Lender shall take such steps as may be reasonable (consistent with its internal policy and legal and regulatory restrictions) to (i) change the contrary contained jurisdiction of its funding office if such change would avoid the Borrowers being required to pay any additional amount or (ii) otherwise mitigate the effects of any law or regulation or any change therein or interpretation thereof as set forth in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.054.04 above.
Appears in 1 contract
Sources: Debtor in Possession Financing Agreement (Oakwood Homes Corp)
Increased Costs and Reduced Return. (a) If Agent or any Lender, shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative agency or Governmental Authority, or compliance by Agent or any Lender or any Person controlling Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to Agent or any Lender or any Person controlling Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject Agent or any Lender or any Agent, or any Person controlling Agent or any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender Agent or such AgentLender, or change the basis of taxation of payments to Agent or any Lender or any Person controlling Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of Agent or any Lender or any Person controlling Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iLender), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, Agent or any Lender or any Person controlling Agent or any Person controlling any such Lender or any such Agent or (iii) impose on Agent or any Lender or any Person controlling Agent or any Person controlling any such Lender or any such Agent Lender, any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to Agent or any Lender or any Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by Agent or any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by Agent or any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Lender, the Borrower Borrowers shall pay to Agent or such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for the amount of such increased costs or reductions reduction of return of capital, payable within sixty (60) days after presentation by Agent or such Lender of a statement in amountthe amount and setting forth in reasonable detail such Person's calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent manifest error).
(b) If Agent or any Lender shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by Agent or any Lender or any Person controlling Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in 66 each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by Agent or any Lender or any Person controlling Agent or any Person controlling such Lender, or Agent or such Lender or such Agent, and determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lenderor Agent's or any AgentLender's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any LenderAgent's or any AgentLender's or any such other controlling Person's capital to a level below that which Agent or such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any guaranty or participation with respect thereto or any agreement to make Loans or such LenderAgent's or such AgentLender's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such LenderAgent's or such AgentLender's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender Agent or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)any Lender, the Borrower Borrowers shall pay to Agent or such Lender or such Agent from time to time such additional amounts as will compensate Agent or such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such LenderAgent's or such AgentLender's or such other controlling Person's capital, payable within sixty (60) days after presentation by Agent or such Lender of a statement in the amount and setting forth in reasonable detail such Person's calculation thereof and the assumptions upon which such calculation was based (which statement shall be deemed true and correct absent manifest error).
(c) All amounts payable under this Section 4.05 3.09 shall bear interest from the date that is 10 sixty (60) days after the date of demand the presentation by any Agent or such Lender or any Agent of the applicable statement referred to above and until payment in full to Agent or such Lender or such Agent at the Reference LIBOR Rate. A certificate of Agent or such Lender or such Agent claiming compensation under this Section 4.053.09, specifying the event herein above described and the nature of such event shall be submitted by Agent or such Lender or such Agent to the BorrowerBorrowers, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such LenderAgent's or such AgentLender's reasons for invoking the provisions of this Section 4.05 3.09, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender If Agent or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount Lender requests compensation under this Section 4.05 within 180 days after the later 3.09, then Agent or such Lender shall, if requested by Borrowers, use reasonable efforts (subject to overall policy considerations of (xsuch Lender) the date to designate a different lending office for funding or booking its Loans hereunder, to assign its rights and obligations hereunder to another of its offices, branches or affiliates or to take such other actions as such Lender or such Agent incurs the respective increased costs or reduction determines, if, in the rate sole judgment of return or (y) the date such Lender or Agent, such Agent has actual knowledge of its incurrence of the respective increased costs designation, assignment or reduction in the rate of return, then such Lender other action (i) would eliminate or such Agent shall only be entitled to be compensated for such amount by the Borrower reduce amounts payable pursuant to this Section 4.05 to the extent the respective increased costs or reduction 3.09 in the rate of return are incurred future and (ii) would not subject Agent or suffered on or after the date which occurs 180 days prior to such Lender to any unreimbursed cost or expense and Agent or such Lender would not suffer any economic, legal or regulatory disadvantage. Nothing in this subsection (d) shall affect or postpone any of the obligations of Borrowers or the rights of Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts or such Lender pursuant to this Section 4.053.09. Borrowers hereby agree to pay on demand all reasonable costs and expenses incurred by Agent or any Lender in connection with any such designation or assignment.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, in the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, of or guideline from, from any central bank or other Governmental Authority or the introduction of, of or change in, in any accounting principles applicable to any Lender or any Agent Lender, or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iLender), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended byby any Lender, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, Loan and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)Lender, the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such AgentLender, and any Lender determines that the amount of such capital is increased as a direct or indirect consequence of any Revolving Loans made or maintained, maintained or any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Revolving Loans made or maintained or any agreement to make Revolving Loans or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, consideration such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent)any Lender, the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 4.04 shall bear interest from the date that is 10 ten days after the date of demand by any a Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such any Lender or such Agent claiming compensation under this Section 4.05, 4.04 specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, thereof and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 4.04, and shall be final and conclusive presumptive evidence of such additional amounts absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.. ARTICLE V CONDITIONS TO EFFECTIVENESS AND EXTENSIONS OF CREDIT
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or the Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any the Agent or any Person controlling any such Lender or any such the Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any the Agent or any Person controlling any such Lender or any such the Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any the Agent, or any Person controlling any such Lender or any such the Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such the Agent, or change the basis of taxation of payments to any Lender or any the Agent or any Person controlling any such Lender or any such the Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any the Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any the Agent or any Person controlling any such Lender or any such the Agent or (iii) impose on any Lender or any the Agent or any Person controlling any such Lender or any such the Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any the Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any Lender or any the Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such the Agent such additional amounts as will compensate such Lender or such the Agent for such increased costs or reductions in amount.
(b) If any Lender or the Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any the Agent or any Person controlling such Lender or such the Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any the Agent or any Person controlling such Lender or such the Agent, and any Lender or the Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's ’s or any the Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any the Agent's or ’s any such other controlling Person's ’s capital to a level below that which such Lender or such the Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's ’s or such the Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such the Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such the Agent from time to time such additional amounts as will compensate such Lender or such the Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such the Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 3.05 shall bear interest from the date that is 10 ten (10) days after the date of demand by any Lender or any the Agent until payment in full to such Lender or such the Agent at the Reference Rate. A certificate of such Lender or such the Agent claiming compensation under this Section 4.053.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such the Agent to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such the Agent's ’s reasons for invoking the provisions of this Section 4.05 3.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any such Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law) (each a “Change in Law”), shall (i) subject any such Lender or any Agent, such Agent or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any such Lender or any such Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any such Lender or any such Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any such Lender or any such Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any such Lender or any such Agent or any Person controlling any such Lender or any Lender, such Agent or any other condition regarding this Agreement or any Loan, Loan and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any such Lender or any such Agent of making any Loan, or agreeing to make any Loan, Loan or to reduce any amount received or receivable by any such Lender or any such Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or shall have determined that any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (Change in each case, occurring after the Effective Date and irrespective of whether having the force of law), Law either (i) affects or would affect the amount of capital required or expected to be maintained by any such Lender or any such Agent or any Person controlling such Lender or such Agent, and such Lender or such Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's maintained or any guaranty or participation with respect thereto, such Lender’s, such Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any such Lender's ’s or any such Agent's or any ’s such other controlling Person's ’s capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any guaranty or participation with respect thereto or any agreement to make Loans Loans, or such Lender's ’s or such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 4.04 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Raterate of 15% per annum payable in cash. A certificate of such Lender or such Agent claiming compensation under this Section 4.054.04, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Administrative Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Agent's ’s reasons for invoking the provisions of this Section 4.05 4.04, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or any such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any agreement to make Loans or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If If, on or after the date hereof, the adoption or implementation of, or of any change in, any applicable law, rule, treaty rule or regulation, or any policy, guideline or directive ofchange therein, or any change in, in the interpretation or administration thereof by, by any courtgovernmental authority, central bank or other administrative comparable agency charged with the interpretation or Governmental Authorityadministration thereof, or compliance by any Lender (or any Agent its Lending Office) or any Person controlling any such Lender or any such Agent the L/C Issuer with any request or directive of, (whether or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether not having the force of law)) of any such authority, shall central bank or comparable agency;
(i) shall subject any Lender (or any Agent, its Lending Office) or any Person controlling any such Lender or any such Agent the L/C Issuer to any tax, duty or other charge (except overall net income or franchise taxes of general application or the rates thereof imposed by the jurisdiction in which such Lender’s or L/C Issuer’s principal executive office or Lending Office is located) with respect to this Agreement or any Loan made by such Lender or such Agentits LIBOR Rate Loans, its Notes, its Letter(s) of Credit, or its participation in any thereof, any Reimbursement Obligations owed to it or its obligation to make LIBOR Rate Loans, issue a Letter of Credit, or to participate therein, or shall change the basis of taxation of payments to any Lender (or its Lending Office) or the L/C Issuer of the principal of or interest on its LIBOR Rate Loans, Letter(s) of Credit, or participations therein or any Agent other amounts due under this Agreement or any Person controlling other Loan Document in respect of its LIBOR Rate Loans, Letter(s) of Credit, any such Lender participation therein, any Reimbursement Obligations owed to it, or any such Agent its obligation to make LIBOR Rate Loans, or issue a Letter of any amounts payable hereunder Credit, or acquire participations therein (except for taxes on the overall net income or franchise taxes of any Lender general application or any Agent the rates thereof imposed by the jurisdiction in which such Lender’s or any Person controlling any such Lender the L/C Issuer’s principal executive office or any such Agent and taxes governed by Section 2.08Lending Office is located), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(i), ; or
(ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement against (including, without limitation, any Loan or such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any LIBOR Rate Loans any such requirement included in an applicable Eurodollar Reserve Percentage) against assets of or held byof, or deposits with or for the account of, or credit extended by, any Lender (or any Agent its Lending Office) or any Person controlling any such Lender the L/C Issuer or any such Agent or (iii) shall impose on any Lender (or any Agent its Lending Office) or any Person controlling any such Lender the L/C Issuer or any such Agent on the interbank market any other condition regarding this Agreement affecting its LIBOR Rate Loans, its Letter(s) of Credit, or its participation in any Loanthereof, any Reimbursement Obligation owed to it, or its obligation to make LIBOR Rate Loans, or to issue a Letter of Credit, or to participate therein; and the result of any event referred to in clauses (i), (ii) or (iii) above shall be of the foregoing is to increase the cost to any such Lender (or any Agent its Lending Office) or the L/C Issuer of making or maintaining any LIBOR Rate Loan, issuing or agreeing to make any Loanmaintaining a Letter of Credit, or participating therein, or to reduce the amount of any amount sum received or receivable by such Lender (or its Lending Office) or the L/C Issuer under this Agreement or under any other Loan Document with respect thereto, by an amount deemed by such Lender or any Agent hereunderL/C Issuer to be material, then, within 10 15 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such Lender or such Agent L/C Issuer (with a copy of which certificate to the Administrative Agent), the Borrower shall be sent obligated to pay to such Lender or L/C Issuer such Additional Amount or amounts as will compensate such Lender or L/C Issuer for such increased cost or reduction (provided, that the Borrower shall not be obligated to pay amounts of the type described in Section 4.05(a)(i) above which are duplicative of, or are specifically excluded from, amounts payable in accordance with Section 2.08).
(b) If, after the date hereof, any Lender, the L/C Issuer, or the Administrative Agent shall have determined that the adoption of any applicable law, rule or regulation (including any Capital Guideline) regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its Lending Office) or the L/C Issuer or any corporation controlling such Lender or L/C Issuer with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency (each a “Change in Law”), has had the effect of reducing the rate of return on such Lender’s or L/C Issuer ‘s or such corporation’s capital as a consequence of its obligations hereunder to a level below that which such Lender or L/C Issuer or such corporation could have achieved but for such adoption, change or compliance (taking into consideration such Lender’s or L/C Issuer ‘s or such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender or Agent L/C Issuer to be material, then from time to time, within 15 days after demand by such Lender or L/C Issuer (with a copy to the Administrative Agent), the Borrower shall pay to such Lender or L/C Issuer, as applicable, such Agent such additional Additional Amount or amounts as will compensate such Lender or such Agent L/C Issuer for such increased costs or reductions in amount.
(b) If any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's or any Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any Agent's or any such other controlling Person's capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained or any agreement to make Loans or such Lender's or such Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower by such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such Agent's or such other controlling Person's capitalreduction.
(c) All amounts payable under Notwithstanding anything herein to the contrary, each of (i) the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) the Basel III Accord issued by the Basel Committee on Banking Supervision and all requests, guidelines or directives in connection therewith, shall be deemed to be a change in law and a “Change in Law” for purposes of this Agreement (including without limitation for purposes of this Section 4.05 shall bear interest from 4.05), regardless of the date that is 10 days after the date of demand by any Lender enacted, adopted or any Agent until payment in full to such Lender or such Agent at the Reference Rate. issued.
(d) A certificate of such a Lender or such Agent L/C Issuer claiming compensation under this Section 4.05, specifying the event herein above described 4.05(c) and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereofAdditional Amount or amounts to be paid to it hereunder shall be conclusive if reasonably determined. In determining such additional amountsamount, each such Lender or Agent will act reasonably and in good faith and will L/C Issuer may use any reasonable averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 shall be final and conclusive absent manifest errormethods.
(de) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or Borrower shall not be required to compensate any Lender, any Agent gives notice to or the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower L/C Issuer pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are for any amounts incurred or suffered on or after the date which occurs more than 180 days prior to the date that such Lender Lender, such Agent or such Agent giving notice to L/C Issuer notifies the Borrower of such Lender’s, such Agent’s or the L/C Issuer’s intention to claim compensation therefor; provided, that if the Borrower is obligated circumstances giving rise to pay such claim have a retroactive effect, then such 180 day period shall be extended to include the respective amounts pursuant to this Section 4.05period of such retroactive effect.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or the Administrative Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent with any directive of, or guideline from, any central bank or other Governmental Authority (in each case, whether or not having the introduction offorce of law), or change inin each of the foregoing instances, any accounting principles applicable to after the date hereof, shall (i) subject any Lender or any the Administrative Agent or any Person controlling any such Lender or the Administrative Agent to any such Agent tax (in each case, occurring after except for general franchise taxes and taxes on the Effective Date and irrespective overall net income of whether having the force of law), shall (i) subject any Lender or the Administrative Agent or any Person controlling any such Lender or the Administrative Agent by the jurisdiction in which such Lender or the Administrative Agent, or any Person controlling any such Lender is organized, has its principal place of business, or any such Agent to any taxlending office), duty or other charge with respect to this Agreement or any Loan made by such Lender or such Administrative Agent, or change the basis of taxation of payments to any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent of any amounts payable hereunder (except for general franchise taxes and taxes on the overall net income of any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) the jurisdiction in respect of any Taxes to the extent that which such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAdministrative Agent, or any Person controlling any such Lender is organized, has its principal place of business, or any lending office), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent or (iii) impose on any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any the Administrative Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any the Administrative Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay within ten (10) Business Days after demand, to such Lender or such the Administrative Agent such additional amounts as will compensate such Lender or such the Administrative Agent for such increased costs or reductions in amount, but without duplication of Taxes and Other Taxes governed by Section 2.09 hereof.
(b) If any Lender or the Administrative Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any the Administrative Agent or any Person controlling such Lender or such the Administrative Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles Guideline (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), in each of the foregoing instances, after the date hereof, either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any the Administrative Agent or any Person controlling such Lender or such Agent, the Administrative Agent and any Lender or the Administrative Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, maintained or any Lender's ’s or any the Administrative Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Administrative Agent's or ’s any such other controlling Person's ’s capital to a level below that which such Lender or such the Administrative Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's ’s or such the Administrative Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such the Administrative Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery ten (10) Business Days of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such the Administrative Agent from time to time such additional amounts as will compensate such Lender or such the Administrative Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such ’s, Administrative Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 2.08 shall bear interest from the date that is 10 days ten (10) Business Days after the date of demand by any Lender or any the Administrative Agent until payment in full to such Lender or such the Administrative Agent at the Reference RateBase Rateinterest rate then applicable to the Term Loan, unless the same is being contested by Borrowers in good faith. A certificate of such Lender or such the Administrative Agent claiming compensation under this Section 4.052.08, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such the Administrative Agent to the BorrowerBorrowers, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such ’s, Administrative Agent's ’s reasons for invoking the provisions of this Section 4.05 2.08, and shall be final and conclusive presumptive absent manifest error.
(d) Notwithstanding anything herein to the contrary contained contrary, the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all rules, regulations, guidelines and directives thereunder or issued in connection therewith shall be deemed, for all purposes of this Section 4.05Agreement, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or adopted after the date which occurs 180 days prior to such Lender of this Agreement, regardless of the date actually enacted, adopted or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05issued.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or any Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any Agent or any Person controlling any such Lender or any such Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any Agent or any Person controlling any such Lender or any such Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, or any Person controlling any such Lender or any such Agent to any tax, duty or other charge with respect to this Agreement or any Loan made by such Lender or such Agent, or change the basis of taxation of payments to any Lender or any Agent or any Person controlling any such Lender or any such Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any Agent or any Person controlling any such Lender or any such Agent or (iii) impose on any Lender or any Agent or any Person controlling any such Lender or any such Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the actual direct cost to any Lender or any Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or any such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such Agent such additional amounts as will compensate such Lender or such Agent for such increased costs or reductions in amount.
(b) If any Lender or any Agent shall have determined that any change of any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any Agent or any Person controlling such Lender or such Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any Agent or any Person controlling such Lender or such Agent, and any Lender or any Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, any Lender's ’s or any Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Agent's ’s or any such other controlling Person's ’s capital to a level below that which such Lender or such Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's ’s or such Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative any Agent), the Borrower shall pay to such Lender or such Agent from time to time such additional amounts as will compensate such Lender or such Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's ’s or such Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's ’s or such Agent's ’s reasons for invoking the provisions of this Section 4.05 4.05, and shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or the Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any the Agent or any Person controlling any such Lender or any such the Agent with any directive of, or guideline from, any central bank or other Governmental Authority or the introduction of, or change in, any accounting principles applicable to any Lender or any the Agent or any Person controlling any such Lender or any such the Agent (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), shall (i) subject any Lender or any Agent, the Agent or any Person controlling any such Lender or any such the Agent to any tax, duty or other charge with respect to this Agreement or any the Term Loan made by such Lender or such the Agent, or change the basis of taxation of payments to any Lender or any the Agent or any Person controlling any such Lender or any such the Agent of any amounts payable hereunder (except for taxes on the overall net income of any Lender or any the Agent or any Person controlling any such Lender or any such Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) in respect of any Taxes to the extent that such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAgent), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any the Term Loan or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any the Agent or any Person controlling any such Lender or any such the Agent or (iii) impose on any Lender or any the Agent or any Person controlling any such Lender or any such the Agent any other condition regarding this Agreement or any the Term Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any the Agent of making any Loan, or agreeing to make any maintaining the Term Loan, or to reduce any amount received or receivable by any Lender or any the Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such the Agent such additional amounts as will compensate such Lender or such the Agent for such increased costs or reductions in amount.
(b) If any Lender or the Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any the Agent or any Person controlling such Lender or such the Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any the Agent or any Person controlling such Lender or such the Agent, and any Lender or the Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans the Term Loan made or maintained, any Lender's or any the Agent's or any such other controlling Person's other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's or any 's, the Agent's or any such other controlling Person's capital to a level below that which such Lender or such the Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans the Term Loan made or maintained or any agreement to make Loans or such Lender's or such the Agent's or such other controlling Person's other obligations hereunder (in each case, taking into consideration, such Lender's or such the Agent's or such other controlling Person's policies with respect to capital adequacy), then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower shall pay to such Lender or such the Agent from time to time such additional amounts as will compensate such Lender or such the Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such the Agent's or such other controlling Person's capital.
(c) All amounts payable under this Section 4.05 shall bear interest from the date that is 10 days after the date of demand by any Lender or any Agent until payment in full to such Lender or such Agent at the Reference Rate. A certificate of such Lender or such Agent claiming compensation under this Section 4.05, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such Agent to the Borrower, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such Agent's reasons for invoking the provisions of this Section 4.05 shall be final and conclusive absent manifest error.
(d) Notwithstanding anything to the contrary contained in this Section 4.05, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or after the date which occurs 180 days prior to such Lender or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05.
Appears in 1 contract
Increased Costs and Reduced Return. (a) If any Lender or the Administrative Agent shall have determined that the adoption or implementation of, or any change in, any law, rule, treaty or regulation, or any policy, guideline or directive of, or any change in, the interpretation or administration thereof by, any court, central bank or other administrative or Governmental Authority, or compliance by any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent with any directive of, or guideline from, any central bank or other Governmental Authority (in each case, whether or not having the introduction offorce of law), or change inin each of the foregoing instances, any accounting principles applicable to after the date hereof, shall (i) subject any Lender or any the Administrative Agent or any Person controlling any such Lender or the Administrative Agent to any such Agent tax (in each case, occurring after except for general franchise taxes and taxes on the Effective Date and irrespective overall net income of whether having the force of law), shall (i) subject any Lender or the Administrative Agent or any Person controlling any such Lender or the Administrative Agent by the jurisdiction in which such Lender or the Administrative Agent, or any Person controlling any such Lender is organized, has its principal place of business, or any such Agent to any taxlending office), duty or other charge with respect to this Agreement or any Loan made by such Lender or such Administrative Agent, or change the basis of taxation of payments to any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent of any amounts payable hereunder (except for general franchise taxes and taxes on the overall net income of any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent and taxes governed by Section 2.08), provided, however, that no Lender or Agent shall be entitled to any amounts under this Section 4.05(a)(i) the jurisdiction in respect of any Taxes to the extent that which such Lender or Agent fails to provide the Required Forms in accordance with Section 2.08(c)(iAdministrative Agent, or any Person controlling any such Lender is organized, has its principal place of business, or any lending office), (ii) impose, modify or deem applicable any reserve, special deposit or similar requirement against any Loan Loan, or against assets of or held by, or deposits with or for the account of, or credit extended by, any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent or (iii) impose on any Lender or any the Administrative Agent or any Person controlling any such Lender or any such the Administrative Agent any other condition regarding this Agreement or any Loan, and the result of any event referred to in clauses (i), (ii) or (iii) above shall be to increase the cost to any Lender or any the Administrative Agent of making any Loan, or agreeing to make any Loan, or to reduce any amount received or receivable by any Lender or any the Administrative Agent hereunder, then, within 10 days after the delivery of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower upon demand by any such Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay within ten (10) Business Days after demand, to such Lender or such the Administrative Agent such additional amounts as will compensate such Lender or such the Administrative Agent for such increased costs or reductions in amount, but without duplication of Taxes and Other Taxes governed by Section 2.09 hereof.
(b) If any Lender or the Administrative Agent shall have determined that any Capital Guideline or the adoption or implementation of, or any change in, any Capital Guideline by the Governmental Authority charged with the interpretation or administration thereof, or compliance by any Lender or any the Administrative Agent or any Person controlling such Lender or such the Administrative Agent with any Capital Guideline or with any request or directive of any such Governmental Authority with respect to any Capital Guideline, or the implementation of, or any change in, any applicable accounting principles Guideline (in each case, occurring after the Effective Date and irrespective of whether or not having the force of law), in each of the foregoing instances, after the date hereof, either (i) affects or would affect the amount of capital required or expected to be maintained by any Lender or any the Administrative Agent or any Person controlling such Lender or such Agent, the Administrative Agent and any Lender or the Administrative Agent determines that the amount of such capital is increased as a direct or indirect consequence of any Loans made or maintained, maintained or any Lender's ’s or any the Administrative Agent's ’s or any such other controlling Person's ’s other obligations hereunder, or (ii) has or would have the effect of reducing the rate of return on any Lender's ’s or any Administrative Agent's or ’s any such other controlling Person's ’s capital to a level below that which such Lender or such the Administrative Agent or such controlling Person could have achieved but for such circumstances as a consequence of any Loans made or maintained maintained, or any agreement to make Loans Loans, or such Lender's ’s or such the Administrative Agent's ’s or such other controlling Person's ’s other obligations hereunder (in each case, taking into consideration, such Lender's ’s or such the Administrative Agent's ’s or such other controlling Person's ’s policies with respect to capital adequacy), then, within 10 days after the delivery ten (10) Business Days of the certificate referred to below in clause (c) of this Section 4.05 to the Borrower demand by such any Lender or such Agent (a copy of which certificate shall be sent by such Lender or Agent to the Administrative Agent), the Borrower Borrowers shall pay to such Lender or such the Administrative Agent from time to time such additional amounts as will compensate such Lender or such the Administrative Agent for such cost of maintaining such increased capital or such reduction in the rate of return on such Lender's or such ’s, Administrative Agent's ’s or such other controlling Person's ’s capital.
(c) All amounts payable under this Section 4.05 2.08 shall bear interest from the date that is 10 days ten (10) Business Days after the date of demand by any Lender or any the Administrative Agent until payment in full to such Lender or such the Administrative Agent at the Reference Base Rate, unless the same is being contested by Borrowers in good faith. A certificate of such Lender or such the Administrative Agent claiming compensation under this Section 4.052.08, specifying the event herein above described and the nature of such event shall be submitted by such Lender or such the Administrative Agent to the BorrowerBorrowers, setting forth the additional amount due and an explanation of the calculation thereof. In determining such additional amounts, each Lender or Agent will act reasonably and in good faith and will use averaging and attribution methods which are reasonable, and such Lender's or such ’s, Administrative Agent's ’s reasons for invoking the provisions of this Section 4.05 2.08, and shall be final and conclusive presumptive absent manifest error.
(d) Notwithstanding anything herein to the contrary contained contrary, the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act and all rules, regulations, guidelines and directives thereunder or issued in connection therewith shall be deemed, for all purposes of this Section 4.05Agreement, unless the Lender or any Agent gives notice to the Borrower that the Borrower is obligated to pay any amount under this Section 4.05 within 180 days after the later of (x) the date such Lender or such Agent incurs the respective increased costs or reduction in the rate of return or (y) the date such Lender or such Agent has actual knowledge of its incurrence of the respective increased costs or reduction in the rate of return, then such Lender or such Agent shall only be entitled to be compensated for such amount by the Borrower pursuant to this Section 4.05 to the extent the respective increased costs or reduction in the rate of return are incurred or suffered on or adopted after the date which occurs 180 days prior to such Lender of this Agreement, regardless of the date actually enacted, adopted or such Agent giving notice to the Borrower that the Borrower is obligated to pay the respective amounts pursuant to this Section 4.05issued.
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Sources: Subordination Agreement (SCG Financial Acquisition Corp.)